If instead of applying for a job, they offer to open IP
I am now looking for a job as a programmer in Moscow. And some recruitment agencies call me and wonder if I have an IP, because their client-employer, instead of an employment contract with employees, concludes service contracts or subcontracts with an IP or LLC with one founder, I will call them an IP in the future. I don’t have an IP, but there is a non-profitable LLC, where I manage my own accounting. Therefore, I know what it is, exactly what taxes you need to pay, and why this scheme in Russia is not legal, and what all this threatens the would-be worker who agreed to this. I repeat once again, I am not a lawyer, but a programmer; what I describe below may well become outdated, change, etc., and, if they indicate the current norm in the comments, I will not mind.
I have nothing against working with recruitment agencies as an applicant if the employer pays for their services and if I qualify for the requirements of a vacancy. I know that it is more difficult to get a job, but it is quite possible. Simply, the requirements for such a candidate are higher than if direct employers found you. But people get settled, the recruiting agency gets money for closed vacancies from clients-employers, the business is working. Although the recruitment agencies, where the applicant pays for the services, I will not go, because the maximum that they can do for your money is a good summary, but I can do it myself.
But the employer turns to a recruitment agency in order to find employees in the event that he wants to hide which particular employer is looking for employees. Therefore, if a recruiter calls from the SC and asks about the daily rate, this is exactly the case that I will talk about below. Although there are some spacecraft that have opened subsidiaries, which receive daily rates from the client-employer for employees working in the territory of the employer, and who pay a monthly salary to their employees, as well as all necessary taxes. It is legal for the employee and calls outstaffing, although there is also something not very clean, but, I repeat, I am a programmer, not a lawyer.
Moreover, the scheme with IP is not legal in Russia. I don’t know about Belarus, in Ukraine it’s almost only acting in IT, but some world-famous employers have decided to move it to Russia.
')
For the first time, a recruiter of the Moscow branch of a reputable global recruitment agency called me with a daily rate offer and began to sing sweetly about the fact that I needed to pay "only 6%" of taxes from the daily rate received. It seemed that she didn’t have any idea that I personally, except for these 6% (by the way, I have 15% of the simplified tax system), still need to pay more than a third of my salary for social taxes, and also personal income tax ... She was very surprised by this , and more from the Moscow branch did not call. The baton took the staff of the Kiev branch of the same recruitment agency. They were so glad that I already have an LLC, that they even called the client’s name (really a global IT brand), assured me that over 40 external IP consultants work for them, and there was nothing, no fines, and so on. But alas, it is only until the first time ...
The very scheme that replaces an employment contract with a service contract, a contract agreement, etc. is not legal. In the future, I will call all these types of service contracts. That is, if you are obliged to come at 9 and leave at 18 o'clock or at 11, but you have to work out your 8 o'clock, if you are fined for being late, there are still some fines, for example, for non-fulfillment of duties. These are all violations of the Internal Regulations and other local acts and their observance is obligatory for employees. That is, you have the duties of employees. But the PI is not an employee ...
It turns out that you have the duties of workers, but the rights of workers are not. There is no right to paid vacation, no paid sick leave, not to mention voluntary health insurance, fitness, cell phone payouts and other “white” companies. If the SP did such a job that did not satisfy the employer (I’ll continue to call the company that offered the scheme to the employee), the employer has the right not to pay for the services. Or he may unilaterally terminate the contract at any time.
But if you are programming at home or in any other place that is not on the employer's territory during your free time, freelance (even with a foreign customer and with foreign exchange control), prepare reports and pay taxes, you have more than one client - that’s all completely normal, in any case, under this scheme just do not fall. The border is quite clear - you do not work on a work schedule and on the employer's territory 40 hours a week and do not fulfill the duties of an employee.
First, it is a direct violation of the Labor Code of the Russian Federation, where it is said that if a person went to work with the permission of the employer, then the employment contract is actually considered to be concluded. And, if an employer instead of him in writing enters into a civil law contract or service agreement with an individual entrepreneur that compels him to execute, then the employee in this case has the right to complain to the labor inspectorate or to sue. A civil contract is concluded for one-time services, for example, you need to add one module in the program, and you finish it at home. Previously, it was often concluded for remote workers, but now the labor contract is obligatory for them. But with an employment contract, the employee has more rights and the employer pays more taxes. In the case of a visit by a labor inspectorate, the employer will not find it, and the courts often take sides of workers, as there are frequent other violations in the design of employees, for example, incorrect entry in the workbook or incorrectly executed labor contract, the labor inspectorate issues a penalty for each of them . Although large companies have become more serious about this, but in small ones it is still often a frequent phenomenon. And in Russia, employers, as a rule, therefore try to behave according to the law. But, unfortunately, not all.
One of my fellow programmers went to an unpaid internship at a company, then began working there for a salary. It turned out that no one at all had been formalized there, but people were working on the prescribed 40 hours a week, as the employer demanded. Accordingly, people did not have work experience, there was no pension savings, there were no employment records, and so on. And the programmers worked. True, my friend liked it there. But for other professions it ended in the 90s of the XX century.
Secondly, it is a violation of the Tax Code of the Russian Federation. In the Tax Code of the Russian Federation there is a concept of a simplified tax system for small businesses. It replaces VAT (up to 18%), property tax and income tax (20%) with the tax of the simplified tax system. You can select up to 6% of income only or up to 15% of the difference between income or expenditure. In addition to the simplified taxation system, there are also special preferential tax regimes for small businesses, for example, a patent. I will continue to call them all on the UNS. It is the SP at the USN that they propose to create an employee. Moreover, individual entrepreneurs who are registered for the first time now have the right to “tax holidays”, but they are for certain regions, certain spheres of activity and only for the tax on the simplified tax system (all other payments remain). Large companies are not entitled to USN, and all taxes are paid in full. Naturally, it is profitable for them to shift part of the taxes on the individual entrepreneur, in addition, the individual entrepreneur is entitled to tax exemptions.
In addition, all employers pay social taxes and personal income tax on employee salaries. These are insurance contributions to social funds and their amount is more than 30% of the salary of employees. Therefore, small companies often pay a “black” or gray ”salary, and large“ white ”companies prefer working with IP. The salary is “white” there, and they are obliged to pay these taxes. And they do not pay for SP.
At first glance, everyone is happy and contented. Large companies do not pay insurance premiums for an employee - they “optimize” their taxes, and an employee works for a “serious” company with a worldwide reputation. Recruiters sweetly sing about “only 6%”, tax holidays and in general who knows about what and who is in that much. But from the moment of registration, the PI falls under the watchful eye of the tax inspection. And according to the law, the individual entrepreneur responds with all his property in the event of bankruptcy, and therefore the tax may issue a fine for any amount. And for me personally, for this reason, openly LLC. In principle, if there is no bank account, then it is not so scary (it will only be difficult to close an IP), an IP is entitled to this (LLC is not), since the tax inspectorate has the right only to block a bank account. But it is unlikely that a large company will work with individual entrepreneurs without a bank account.
But, in fact, besides “only 6%” refuses, there are still obligatory payments. The individual entrepreneur pays insurance premiums for himself, only these premiums are fixed and the individual entrepreneur is obliged to pay them even if he does not have any income. Today, they amount to more than 20 thousand rubles per year, plus also 1% of income over 300 thousand rubles per year. If you opened an LLC, then, I'm sorry, but what your employer sent you to the bank account is not your income personally, but an LLC, and you have no right to just spend it on your own needs, as the IP. The easiest way is to withdraw them in the form of a salary to yourself, but do not forget to pay in excess of the salary amount more than 30% of insurance premiums and from the salary amount 13% of personal income tax. Accordingly, your income is reduced by these amounts. You can still withdraw money from the account in the form of dividends, then without insurance premiums, but with personal income tax, but not more often than once every 3 months ...
Another sensitive issue is accounting ... Yes, according to the law, the individual entrepreneur (LLC has been abolished for USN) may not have an accountant staff. But in practice, to understand the intricacies of Russian legislation without a good knowledge of accounting is almost impossible, moreover, in Russia it changes too often. 1C therefore could become a leader, because only she manages to make the necessary reporting in the program in time. So without an accountant, 1C or its analogues can not do ... You can still really hire an accounting company. And also not free.
And, if all individual entrepreneurs are serviced by a single accounting company, then this is also a “bell” for the tax authority, that this is their “favorite scheme with individual entrepreneurs instead of employees”. But note that for the mistakes of an accountant who has already received money from you, the PI itself is still responsible, and the “girls” without real experience among accountants for the PI are not uncommon. Reporting must be submitted, even if there was no income. But, for example, it’s already necessary to submit reports to the Pension Fund on a monthly basis ... And now it’s customary to submit reports on the Internet, and this is also chargeable. Although the SP or a small LLC has the right to submit reports on paper. There is a truth, paid online accounting of the type of My business or Elba, but you also have to pay for their use. And in the process of using one of these services, I was assured that there was no need to do double work, leave only the web service, I don’t need to duplicate it in 1C, but I’m somehow better safe and do it there and there, and the automatic exchange between They are not (more precisely, there is only one-sided of 1C). As a result, I personally got some sums on the bank, I had to hand over annual reports from 1C. But for many there everything is in order.
You will also have to pay for the use of banking services. There were nice tariffs for small banks, but now there is little left and it’s not a fact that the chosen small bank will not be closed.
These are obligatory payments. And, in general, they can be foreseen, calculated in advance and entered into the daily rate. Much worse than the fines of the tax inspectorate or other supervisory authorities. For the sake of brevity, I will call them tax.
I remind you that the tax inspectorate carefully monitors the statements and taxes, and fines are issued in many cases that you and the head will not come to, but they are really spelled out in the legislation. If the tax opens the scheme of work with the PI, then they can even put them behind bars. It was on such a scheme that Khodorkovsky got caught. I was asked here how the tax finds out about this scheme. Honestly, I have no idea. But somehow find out. A tax audit is appointed, and the entrepreneur is charged, and fines are issued to the employer For individual entrepreneurs there is no limit on fines, and the amount can be any, including exceeding your annual earnings at this employer. And you have to pay in any case. Fines for tax is a common practice, in case of non-payment, a bank account is blocked. And I doubt that your employer will pay you. The PI is an independent legal unit.
I was objected here, saying that the employer is to blame, and no one will stick to SP, they are poor, unhappy, felled ... The SP is enough to hire a good accountant who, in the opinion of such an entrepreneur, will solve all tax issues without an entrepreneurial attitude and everything will be OK. Alas, this is the answer of the employee. The employee is really no claims under this tax scheme. But to the PI already have, it is already a responsible legal unit. Although it is possible that there will be no inspections, that the tax inspector will simply regret the individual entrepreneur and do not charge a fine, but it is possible that he can, it can be quite immodest. It does not depend on the presence and professionalism of an accountant, although a competent accountant can predict in advance where there are violations, which the Federal Tax Service Department may find fault with and eliminate them, that is, reduce the number of fines, but alas, not the amount ...
The penalty is also written out and the employer. But only for this purpose he has a whole staff of lawyers who are not registered as individual entrepreneurs (they, unlike programmers, understand what it is), and tax penalties can be challenged in court. The individual entrepreneur, of course, also has this right, but for this you need either to hire a good lawyer, or to defend yourself in court on your own, after having studied the law in addition to accounting. But legally savvy programmer-IP will immediately abandon this scheme.
Thus, some "serious" companies are trying to "optimize" their taxation, based on the fact that programmers do not know the legislation well, and force them to issue an IP or LLC with one founder instead of an employment contract with an employee. In this case, you are obliged to fulfill the duties of employees, but you have no employee’s right to leave, sick leave, etc., and you also have a duty to keep accounts and pay taxes. And there is the possibility of the employer unilaterally terminate the contract with you. In Russia, this scheme is recognized as illegal (violations under the Labor Code, the Tax Code and the Criminal Code of the Russian Federation) and the tax inspectorate is very "fond" of opening these schemes, which are called the "Khodorkovsky scheme". It will be harder for the individual entrepreneur after such a tax audit (since he is responsible in this case with his property, and if he cannot pay the fine, his property is arrested). And if an LLC is open with one participant, then in this case the tax will be able to recover only what is in the bank account and the authorized capital (although there is a risk of seizure of property in this case, but the risk is much less), but from the amount received from This employer will have to deduct more than 30% monthly for insurance premiums from his salary.
If you really have legal and financial knowledge, then risks can be minimized. I remind you that in Russia ignorance of the laws is no excuse. And yet, the PI is not an employee, and the thinking of employees is not applicable to him, you need to learn entrepreneurial thinking and see more widely than an ordinary employee programmer sees, because he does not need to hammer his head with knowledge of law, accounting, marketing, sales, etc. .n - as in the usual company other people are engaged in it. A PI or the sole founder of LLC - one.
I have nothing against working with recruitment agencies as an applicant if the employer pays for their services and if I qualify for the requirements of a vacancy. I know that it is more difficult to get a job, but it is quite possible. Simply, the requirements for such a candidate are higher than if direct employers found you. But people get settled, the recruiting agency gets money for closed vacancies from clients-employers, the business is working. Although the recruitment agencies, where the applicant pays for the services, I will not go, because the maximum that they can do for your money is a good summary, but I can do it myself.
But the employer turns to a recruitment agency in order to find employees in the event that he wants to hide which particular employer is looking for employees. Therefore, if a recruiter calls from the SC and asks about the daily rate, this is exactly the case that I will talk about below. Although there are some spacecraft that have opened subsidiaries, which receive daily rates from the client-employer for employees working in the territory of the employer, and who pay a monthly salary to their employees, as well as all necessary taxes. It is legal for the employee and calls outstaffing, although there is also something not very clean, but, I repeat, I am a programmer, not a lawyer.
Moreover, the scheme with IP is not legal in Russia. I don’t know about Belarus, in Ukraine it’s almost only acting in IT, but some world-famous employers have decided to move it to Russia.
')
For the first time, a recruiter of the Moscow branch of a reputable global recruitment agency called me with a daily rate offer and began to sing sweetly about the fact that I needed to pay "only 6%" of taxes from the daily rate received. It seemed that she didn’t have any idea that I personally, except for these 6% (by the way, I have 15% of the simplified tax system), still need to pay more than a third of my salary for social taxes, and also personal income tax ... She was very surprised by this , and more from the Moscow branch did not call. The baton took the staff of the Kiev branch of the same recruitment agency. They were so glad that I already have an LLC, that they even called the client’s name (really a global IT brand), assured me that over 40 external IP consultants work for them, and there was nothing, no fines, and so on. But alas, it is only until the first time ...
The very scheme that replaces an employment contract with a service contract, a contract agreement, etc. is not legal. In the future, I will call all these types of service contracts. That is, if you are obliged to come at 9 and leave at 18 o'clock or at 11, but you have to work out your 8 o'clock, if you are fined for being late, there are still some fines, for example, for non-fulfillment of duties. These are all violations of the Internal Regulations and other local acts and their observance is obligatory for employees. That is, you have the duties of employees. But the PI is not an employee ...
It turns out that you have the duties of workers, but the rights of workers are not. There is no right to paid vacation, no paid sick leave, not to mention voluntary health insurance, fitness, cell phone payouts and other “white” companies. If the SP did such a job that did not satisfy the employer (I’ll continue to call the company that offered the scheme to the employee), the employer has the right not to pay for the services. Or he may unilaterally terminate the contract at any time.
But if you are programming at home or in any other place that is not on the employer's territory during your free time, freelance (even with a foreign customer and with foreign exchange control), prepare reports and pay taxes, you have more than one client - that’s all completely normal, in any case, under this scheme just do not fall. The border is quite clear - you do not work on a work schedule and on the employer's territory 40 hours a week and do not fulfill the duties of an employee.
First, it is a direct violation of the Labor Code of the Russian Federation, where it is said that if a person went to work with the permission of the employer, then the employment contract is actually considered to be concluded. And, if an employer instead of him in writing enters into a civil law contract or service agreement with an individual entrepreneur that compels him to execute, then the employee in this case has the right to complain to the labor inspectorate or to sue. A civil contract is concluded for one-time services, for example, you need to add one module in the program, and you finish it at home. Previously, it was often concluded for remote workers, but now the labor contract is obligatory for them. But with an employment contract, the employee has more rights and the employer pays more taxes. In the case of a visit by a labor inspectorate, the employer will not find it, and the courts often take sides of workers, as there are frequent other violations in the design of employees, for example, incorrect entry in the workbook or incorrectly executed labor contract, the labor inspectorate issues a penalty for each of them . Although large companies have become more serious about this, but in small ones it is still often a frequent phenomenon. And in Russia, employers, as a rule, therefore try to behave according to the law. But, unfortunately, not all.
One of my fellow programmers went to an unpaid internship at a company, then began working there for a salary. It turned out that no one at all had been formalized there, but people were working on the prescribed 40 hours a week, as the employer demanded. Accordingly, people did not have work experience, there was no pension savings, there were no employment records, and so on. And the programmers worked. True, my friend liked it there. But for other professions it ended in the 90s of the XX century.
Secondly, it is a violation of the Tax Code of the Russian Federation. In the Tax Code of the Russian Federation there is a concept of a simplified tax system for small businesses. It replaces VAT (up to 18%), property tax and income tax (20%) with the tax of the simplified tax system. You can select up to 6% of income only or up to 15% of the difference between income or expenditure. In addition to the simplified taxation system, there are also special preferential tax regimes for small businesses, for example, a patent. I will continue to call them all on the UNS. It is the SP at the USN that they propose to create an employee. Moreover, individual entrepreneurs who are registered for the first time now have the right to “tax holidays”, but they are for certain regions, certain spheres of activity and only for the tax on the simplified tax system (all other payments remain). Large companies are not entitled to USN, and all taxes are paid in full. Naturally, it is profitable for them to shift part of the taxes on the individual entrepreneur, in addition, the individual entrepreneur is entitled to tax exemptions.
In addition, all employers pay social taxes and personal income tax on employee salaries. These are insurance contributions to social funds and their amount is more than 30% of the salary of employees. Therefore, small companies often pay a “black” or gray ”salary, and large“ white ”companies prefer working with IP. The salary is “white” there, and they are obliged to pay these taxes. And they do not pay for SP.
At first glance, everyone is happy and contented. Large companies do not pay insurance premiums for an employee - they “optimize” their taxes, and an employee works for a “serious” company with a worldwide reputation. Recruiters sweetly sing about “only 6%”, tax holidays and in general who knows about what and who is in that much. But from the moment of registration, the PI falls under the watchful eye of the tax inspection. And according to the law, the individual entrepreneur responds with all his property in the event of bankruptcy, and therefore the tax may issue a fine for any amount. And for me personally, for this reason, openly LLC. In principle, if there is no bank account, then it is not so scary (it will only be difficult to close an IP), an IP is entitled to this (LLC is not), since the tax inspectorate has the right only to block a bank account. But it is unlikely that a large company will work with individual entrepreneurs without a bank account.
But, in fact, besides “only 6%” refuses, there are still obligatory payments. The individual entrepreneur pays insurance premiums for himself, only these premiums are fixed and the individual entrepreneur is obliged to pay them even if he does not have any income. Today, they amount to more than 20 thousand rubles per year, plus also 1% of income over 300 thousand rubles per year. If you opened an LLC, then, I'm sorry, but what your employer sent you to the bank account is not your income personally, but an LLC, and you have no right to just spend it on your own needs, as the IP. The easiest way is to withdraw them in the form of a salary to yourself, but do not forget to pay in excess of the salary amount more than 30% of insurance premiums and from the salary amount 13% of personal income tax. Accordingly, your income is reduced by these amounts. You can still withdraw money from the account in the form of dividends, then without insurance premiums, but with personal income tax, but not more often than once every 3 months ...
Another sensitive issue is accounting ... Yes, according to the law, the individual entrepreneur (LLC has been abolished for USN) may not have an accountant staff. But in practice, to understand the intricacies of Russian legislation without a good knowledge of accounting is almost impossible, moreover, in Russia it changes too often. 1C therefore could become a leader, because only she manages to make the necessary reporting in the program in time. So without an accountant, 1C or its analogues can not do ... You can still really hire an accounting company. And also not free.
And, if all individual entrepreneurs are serviced by a single accounting company, then this is also a “bell” for the tax authority, that this is their “favorite scheme with individual entrepreneurs instead of employees”. But note that for the mistakes of an accountant who has already received money from you, the PI itself is still responsible, and the “girls” without real experience among accountants for the PI are not uncommon. Reporting must be submitted, even if there was no income. But, for example, it’s already necessary to submit reports to the Pension Fund on a monthly basis ... And now it’s customary to submit reports on the Internet, and this is also chargeable. Although the SP or a small LLC has the right to submit reports on paper. There is a truth, paid online accounting of the type of My business or Elba, but you also have to pay for their use. And in the process of using one of these services, I was assured that there was no need to do double work, leave only the web service, I don’t need to duplicate it in 1C, but I’m somehow better safe and do it there and there, and the automatic exchange between They are not (more precisely, there is only one-sided of 1C). As a result, I personally got some sums on the bank, I had to hand over annual reports from 1C. But for many there everything is in order.
You will also have to pay for the use of banking services. There were nice tariffs for small banks, but now there is little left and it’s not a fact that the chosen small bank will not be closed.
These are obligatory payments. And, in general, they can be foreseen, calculated in advance and entered into the daily rate. Much worse than the fines of the tax inspectorate or other supervisory authorities. For the sake of brevity, I will call them tax.
I remind you that the tax inspectorate carefully monitors the statements and taxes, and fines are issued in many cases that you and the head will not come to, but they are really spelled out in the legislation. If the tax opens the scheme of work with the PI, then they can even put them behind bars. It was on such a scheme that Khodorkovsky got caught. I was asked here how the tax finds out about this scheme. Honestly, I have no idea. But somehow find out. A tax audit is appointed, and the entrepreneur is charged, and fines are issued to the employer For individual entrepreneurs there is no limit on fines, and the amount can be any, including exceeding your annual earnings at this employer. And you have to pay in any case. Fines for tax is a common practice, in case of non-payment, a bank account is blocked. And I doubt that your employer will pay you. The PI is an independent legal unit.
I was objected here, saying that the employer is to blame, and no one will stick to SP, they are poor, unhappy, felled ... The SP is enough to hire a good accountant who, in the opinion of such an entrepreneur, will solve all tax issues without an entrepreneurial attitude and everything will be OK. Alas, this is the answer of the employee. The employee is really no claims under this tax scheme. But to the PI already have, it is already a responsible legal unit. Although it is possible that there will be no inspections, that the tax inspector will simply regret the individual entrepreneur and do not charge a fine, but it is possible that he can, it can be quite immodest. It does not depend on the presence and professionalism of an accountant, although a competent accountant can predict in advance where there are violations, which the Federal Tax Service Department may find fault with and eliminate them, that is, reduce the number of fines, but alas, not the amount ...
The penalty is also written out and the employer. But only for this purpose he has a whole staff of lawyers who are not registered as individual entrepreneurs (they, unlike programmers, understand what it is), and tax penalties can be challenged in court. The individual entrepreneur, of course, also has this right, but for this you need either to hire a good lawyer, or to defend yourself in court on your own, after having studied the law in addition to accounting. But legally savvy programmer-IP will immediately abandon this scheme.
Thus, some "serious" companies are trying to "optimize" their taxation, based on the fact that programmers do not know the legislation well, and force them to issue an IP or LLC with one founder instead of an employment contract with an employee. In this case, you are obliged to fulfill the duties of employees, but you have no employee’s right to leave, sick leave, etc., and you also have a duty to keep accounts and pay taxes. And there is the possibility of the employer unilaterally terminate the contract with you. In Russia, this scheme is recognized as illegal (violations under the Labor Code, the Tax Code and the Criminal Code of the Russian Federation) and the tax inspectorate is very "fond" of opening these schemes, which are called the "Khodorkovsky scheme". It will be harder for the individual entrepreneur after such a tax audit (since he is responsible in this case with his property, and if he cannot pay the fine, his property is arrested). And if an LLC is open with one participant, then in this case the tax will be able to recover only what is in the bank account and the authorized capital (although there is a risk of seizure of property in this case, but the risk is much less), but from the amount received from This employer will have to deduct more than 30% monthly for insurance premiums from his salary.
If you really have legal and financial knowledge, then risks can be minimized. I remind you that in Russia ignorance of the laws is no excuse. And yet, the PI is not an employee, and the thinking of employees is not applicable to him, you need to learn entrepreneurial thinking and see more widely than an ordinary employee programmer sees, because he does not need to hammer his head with knowledge of law, accounting, marketing, sales, etc. .n - as in the usual company other people are engaged in it. A PI or the sole founder of LLC - one.
Source: https://habr.com/ru/post/300498/
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